By Tisaranee Gunasekara –
“Find out what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them….” Fredrick Douglass (Speech on 3.8.1857 – The Fredrick Douglass Papers)
The parliament will ‘debate’ the PSC Report on the 10th and the 11th (once again Ranil Wickremesinghe provided the Rajapaksas with a desperately needed fig-leaf by opting to participate in this charade). The UPFA majority will vote to impeach the Chief Justice on 11th evening. The President will ‘sack’ the CJ and appoint a ‘new CJ’ (or an ‘Acting CJ’) over the weekend.
Since the CJ cannot accede to her dismissal without violating the Supreme Court and Appeal Courtrulings, she will have to continue with her duties on Monday. The violent phase of the Rajapaksas’ Hulftsdorf Coup’ will commence then: “According to reliable sources, the Chief Justice is planning with a coterie of so called supporters to storm Hulftsdorf and remain in the premises, even if she is impeached. This is similar to the drama in which another person in uniform turned politician refused to budge from a city hotel until this person was forced out. If this kind of drama is enacted, the people will have a proper answer with broomsticks this time, an observant wag said” (Daily News – 9.1.2013).
Since the President has reiterated that “There are attempts to topple this government backed by the spirit of separatism and those who supported the LTTE” (Daily Mirror – 9. 1.2013), all those who resist the illegal impeachment could be labelled ‘traitors’ and dealt with accordingly.
Concurrently, efforts will be taken to confer a faux-legality upon these violent and illegal measures. According to Minister Susil Premajayantha, “the Supreme Court interpretation of the impeachment could change in the future” (Sri Lanka Mirror – 9.1.2013). The regime may try to clobber together a five member bench under the aegis of the ‘new chief justice’ to confer a mantle of legality on the PSC and thereby the impeachment. The usual Rajapaksa combination of threats and rewards will be used to cow judges of superior courts into submission.
In a Medamulana-style response to the Appeal Court ruling, President Rajapaksa proclaimed that “all powers regarding leave matters pertaining to Supreme Court judges and their foreign visits etc. and the approval thereof will now by default be vested with him as the Executive” (Daily News – 8.1.2013). The message is simple: the life of disobedient judges will be made extremely uncomfortable and unpleasant. Overt threats of the lethal variety will help create a climate of fear; already two of the Appeal Court judges who ruled on the PSC have reportedly received threatening calls. Those judges willing to play the Rajapaksa-game will be rewarded blatantly, to drive home the message to the recalcitrants. If all else fails, there is always the threat and the reality of impeachment, witch-trial style, to depose those judges who believe in the rule of law and resist the law of the rulers.
From ‘Helping Hambantota’ to Impeachment
The manipulative manner in which the ‘Helping Hambantota’ case was resolved provides a tiny indication of whatSri Lankacan expect from a post-impeachment judiciary.
In September 2005, Chief Justice Sarath N Silva saved Mahinda Rajapaksa’s presidential prospects by ordering a temporarily halt to the ‘Helping Hambantota’ investigation. As a prelude, he arranged the transfer of the Magistrate who had given the CID the go-ahead to investigate the alleged misappropriation of Rs.83 million of tsunami funds by the then Prime Minister.
That fateful decision of the country’s highest court was based not on legal or moral-ethical grounds but on partisan political ones. According former CJ Sarath N Silva, “We did this expecting Mahinda Rajapaksa in turn would safeguard the rights of other people but it is not happening today. There are many complaints that it was I who was responsible to bring Rajapaksa into power. I admit it since Mahinda Rajapaksa was freed to become President because of this decision by the Supreme Court…. President Rajapaksa is now able to carry out wrongful acts because of the order we delivered then” (Daily Mirror – 16.10.2012).
So, according to the Sarath Silva of October 2012, Sarath Silva, the CJ, lied with the intent of deceiving the public, when he “strongly criticised the police for initiating an ‘informal’ investigation based upon newspaper reports” (BBC – 28.9.2005). According to Sarath Silva of October 2012, Sarath Silva, the CJ, acted contrary to law when he ruled that Mahinda Rajapaksa should be paid compensation because the investigation into ‘Helping Hambantota’ violated his fundamental rights. Worse still, by admitting that the ‘Helping Hambantota’ ruling was a partisan decision aimed at saving Mahinda Rajapaksa’s presidential prospects, Mr. Silva has undermined the credibility of the other judges on that SC bench: Justice NE Dissanayake and Justice Shiranee Thilakawardane.
A CJ who is willing to manipulate and violate the law on demand is what the Rajapaksas want. Such a CJ can help construct a judiciary which will accept all Rajapaksa ‘laws’ unquestioningly; a judiciary which will equate fidelity to Rajapaksas with law-abidingness and opposition to Rajapaksas with law-breaking; a judiciary which will believe the absurdist productions of the police (and the AG’s Department) – such as the museum robbery was the work of a single drug addict; an infantalised judiciary which will become a willing tool of Rajapaksa Rule.
Barring a serious threat of a Commonwealth boycott, the impeachment will rampage ahead (the Siblings only pretend to venerate the Mahanayake Theros). Clearly the Rajapaksas think that the sooner they can oust this CJ and replace her with a total stooge, the better it will be for them. In the months ahead, they can conjure a return to normalcy, so that when the time for the Commonwealth Summit arrives, the impeachment is but a distant memory.
But thanks to the valiant resistance of the CJ and the judiciary, that Rajapaksa plan may not work. The Rajapaksas wanted an easy impeachment victory; that has already been denied to them. The Rajapaksas wanted to depict the impeachment as a legal if not legitimate measure; it has already ceased being either legal or legitimate. The Rajapaksas can win the impeachment battle only by using brute force, and thereby exposing some of their abhorrent proclivities and dangerous intents. Next week, the Rajapaksas are likely to declare the impeachment battle won, but that victory will be a pyrrhic one, because of the political damage done to the Siblings and their dynastic project.
The impeachment marks the end of the long moment of Rajapaksa hegemony. The Rajapaksa rule will continue, but devoid of legitimacy and with its democratic façade in tatters.
The road to Nandikdal lies through the jungles of abuse and impunity.
« Part II- Judiciary At War Against The Constitution